### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 12 , 2003 Ses sion DLLP, LLC, dba BIG NINE PRODUCTIO NS v. INTERNATIONAL CREATIVE MANAGEMENT, INC., aka ICM, ET AL 

### . Appeal from the Circuit Court for Hamilton County No. 00C1945 Samuel H. Payne, Judge FILED JUNE 25, 2003
No. E2002-02452-COA-R3-CV

DLL P, LL C, dba Big Nine Productions (“DL LP”) sued I

nternational Creative Management, I nc., aka ICM (“ICM”) and Rock On Tour s, Inc. (collectively “the defendants”) for

damages and other relief arising out of the alleged failure of the def endants to follow thr oug h with a concert featuring the defenda nts’ principal, a musical group known as the Moody Blues. The defendants moved the court to compel arbitration under an alleged agree

ment providing for

arbitration in New York City. The trial court ordered arbitration, but decree d that it would be conducted in Chattanooga. The defenda nts appeal, arguing that the trial c ourt was without authority to order a rbitration other than in New York City. By

way of a separate issue, the appellee, DL LP, contends that the t

rial cour t ordered “non-binding” a

rbitrati on and tha

t it erre d in doing

so in the absence of the pa rties’ c onsent, said consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outrig ht reversal of the court’s order. We hold that the trial court ordered “binding” arbitration; that such arbitration was required under the

terms of the pa

rties’ agreement; and that the trial court er red in failing to order that the arbitration would be conducted in New York City . Accordingly , we modify the trial court’s order. As modified, the order is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified; Case Remanded
C HARLES D. S USANO , J R ., J., deliver ed the opinion of the

court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined.
Robert E. Cooper, Jr., Samuel L. Felker, and Andr ea T. McKellar, Nashville, Te nn es se e, at to rn eys for appellants, Interna

tional Creative Management, I nc., aka ICM, and Rock on Tours, I nc.
H. Wayne Gran

t, Harry Cash, and

Steven W. G

rant, Ch at ta no og a, Te nn es se e, at to rn eys for appellee, DLL P, LL C, dba Big

Nine Prod

uctions.-2- OPINION
I.
DLLP allege d in the am

ended c omplaint th at it ne gotiated with the defendants rega rding DLL P’s desire to promote a Moody B lues concert in Chattanooga. Initially , DLL P proposed that the concer

t be held at Finley Stadium on the ca mpus of the University of Te nnessee–Chattanooga. The amended compl aint sets f orth the f ollowing additiona l operat ive fac ts: Throughout

March and April 1999, [ D LL P] and Def

endants negotiated

the terms of

the part ies’ agreement. On March 22, 1999, [DLLP’s broker] faxed to [the defendant] ICM’s representa tive, T err y Rhodes, a letter setting forth the pr opose d term s of th e Chat tanoo ga concer t. On April 21, 1999, [DLLP’s broke r] faxed a second le tter to Terry Rhod es requesting that [the defendant] ICM approve the concert in Chattanooga. . . .
Pursuant to the terms of the document, the concert was to beheld on August 19, 1999. [DLLP] agr

eed to pay [DL

LP’s broker] $10,000 for brokering the deal betwee n [DLL P] and I CM. [DLLP] further ag reed to pay the Moody

Blues $100,000 or

fifty perc ent (50%) of box office gross procee ds a ftertaxes. [The defendant] ICM, as agent[] of the Moody Blues, w as to rece ive $50,000 immediately and the ba lance was to be pay able

on the night of the performance. [DL LP] was to be responsi ble for a ll other pr oduction a

nd promoti on costs.
Alth ough numerous documents outlining terms of the negotiation were exchanged between the parties, no f ormal co ntract was ever executed betwee n the par ties.
Sometime

between April 30, 1999, and Ma y 6 , 1999, [DLLP] was advised that Finley Stadium would no longe r be a vai lable for the Moody Blues c oncert. [DLL

P] contacted other possible venues, and was able to secure Eng e l Stadium as a [sic] alternative venue. [DLL P] not ified Defendants of the new venue, and Defendants approved the change of venue.
On Ma y 6, an d M ay 10, 1999, [DLL P] wired a t

otal of $6 0,000 to [the defendant] ICM and [DLL P’s broker]. [DLL

P] then undertook to perform all the tasks which were necessary to promote and produce the Moody Blues conc er t, in cluding, but not limited to, securing contracts with repr

esentat ives of the C hattanooga Sy mphony and Opera Asso ciati on, the Johnson Group; for advertising and-3- market ing, the University of Te nnessee box office; for

the production and sales o f ti ckets, the Apex Electric Company , Inc.; for electr ical stage work, the Ch at ta no og a T en t C om pa ny, Advantage Printing and Mailing Services, Engel Stadium, and other c ompaniesrelated to producing and pr

omoting t he conc ert. (Paragraph

numbering in original omitted) (emphas is added) . The ame nded comp laint go es on to allege that the d efenda nts refu sed to allow the Moody Blues to p erform in Engel Stadium be cause they objecte d to the g

roup per forming in a base ball s tadium. The con cer t wa s ne ver hel d. D LLP alleges breach of contract, unjust enrichment, conver sion, fraudulent misrepresentation, negligent misrepresentation, and breach of warr anty. I t seeks money dama

ges and other relief.
The defendants filed a

motion to compel arbitration, taking the position that there is a writing which me mor ializes the parties’ agreement and that this writing c ontains a provision requiring arbitration in New York City unde r the laws of the state of New York.
Followin g a number of hearings, the trial court e ntered an order on September 3, 2002, which, as pertinent to the issues on this appeal, decrees that

the foreg oing ca se shall be submitted to arbitration under the laws of arbitration of the State of

Tennessee, said arbitration to be conducted in Chattanooga, Tennessee by an arbitrator

sel ect ed b y the par ti es. If the p arti es are u

nable to a

gree o n the iden

tity of an app

ropriate arbitrator, the Court s hall appo int a [sic] an arbit rator upon being notified by the parties that the a rbitrator canno t be selected by agree ment.
II. The defendants’ brief raises the following issue:
Was there a contract bet ween the parties in which they agreed to arbitra te in New York

City any disputes between them arising out of their contractual relationship?
DLLP contends that the trial court ordered non-binding ar bitration and that it had no authority to do so in the absence of the consent of the parties. I t relies upon Tenn. Sup. Ct. R. 31, Sec. 3(d).
III.
The parties have a sharp d isagreement as to exactly

what the t

rial cou rt order ed in this case. DLLP contends that the court ordered non-binding arbitra tion, while

the defendants assert that the court decreed binding arbitration. In support of their re spective

positions, both part

ies direct us to-4-

certain cr yp tic comme

nts the tri al court

made dur

ing the t hree he aringsin the insta nt case. These comments, some of which tend to support each party ’s side, are not controlling. “A Court speaks only through its writte n judgme nts, duly entere d upon its minutes.” Sparkle La undry & Cleaners, Inc. v. Kelton , 595 S.W.2d 88, 93 (Tenn. Ct. App. 1979). When interpreting a trial court’s decree, we cannot rely upon c omments made from the bench when those comments were not incorpor ated into the court’s order. Rather, we must look only to the lang uage of that order, at least to the extent that the la nguag e is clea

r and una mbiguous

. In the instant case, the trial court decreed that the case “be submitted to arbitra tion.” Since the parties did not consent to non-binding arbitration pursuant to Tenn. Sup. Ct. R. 31, Sec. 3(d), the trial court was without

authority to order suc

h arbitration. We can only conc lude from this that the trial court ordered traditional, i.e. , binding, arbitration. We find thisissue in fa vor of the defenda nts.
IV.
The trial court decided

this case based upon the pleadings, affidavits, and other papers filed by the part ies. The c ourt did no t hold an evidentiary he aring on the issue of whether the parties ha d agreed to arbitrate any

disputes arising out of their contractual relationship. Accordingly , the trial court’s decision

on this issue

is in the na

ture of s ummary

judgmen t and we w ill review i

tas such. Summary judgmen

t is only ap propria

te “if the

pleading s, deposit

ions, answ ers to interrog atories, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to

any materia l fact and that the

moving pa

rty is entitle d to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. In deciding this case , we “must take the stronge st legitimateview of the evide nce in fa vor of the nonmoving

party , all ow all reasonable inferences in favor of that pa rt y, and discard all countervailing evidence .” Byrd v. Ha ll , 847 S.W.2d 208, 210-11 (Tenn. 1993). Since a motion fo

r summary

judgmen t presen ts a pure question of

law, our review i s de novo with no presumption of correctness as to the trial court’s judgment. Gonzales v. Alman Constr. Co. , 857 S.W.2d 42, 44 (Tenn. Ct. App. 1993). We must decide anew if summary judgme nt is appropriate.
V.
The questio n for us is whether the fac ts show, without dispu te, that th ere wa s a contr

ac t betweenDLL

P and the defendants that included an agreement to arbitrate ; and, if so, whether arbitration is required to be held in New York City according to the terms of that contract.
In its brief, DLL

P contends that it received a proposed written contract fr om the defe

ndants at the end of

April, 199 9. It i s not dispute d that the proposed contract contains an arbitration provision in the following language:

Any claim or d

ispute arising out of or relating

to this agreement or the breach thereof shall be settled by ar

bitration in New York, New York in accordance with the rules and re gulations then obtaining of the-5- Amer ican Arbitra

tion Assoc iation g overning three- member p anels. The pa rt ie s h er et o a gr ee to be bo un d b y such award in such arbitration and judgment upon the award rendered by the arbitra

tors may be ente

red in any c ourt having jurisdiction thereof.
Withinthe next two weeks, DLL P made some cha

nges to t he contr act, most notably the change in venue from Finley Stadium to Eng el Stadium, signed the proposed contract that the defendants had sent to it, and forwarded thetwo-page contra ct with the

Engel St adium add

endum to th

e defendants. DLLP asserts that its changes constituted a counteroffe r. Approximately twomonths l ater, the d efendant ICM sent a letter to DL LP, which refere

nced an earlier conversation in whi ch D LL P agreed to wire a $50,000 pay

ment to ICM. DLL

P argues that this letter is proof that the d efenda nts never accepted DLL

P’s counteroffer. Hence, so the argument g oes, the three-page writing , a copy of which is attached as an appendix to this opinion, is not the parties’ agreement.
The position ta

ken by DLL P on this app eal – that the writing incorpor ating the chang e to Engel Sta dium was never accepted by the defendants – is diametrically opposed to its pos itio n asserted in the amended complaint. In that document, DLL P clearly a

lleges that it “notified Defend ants of the new venue, and Defendants approved the change of venue .” (Emphasis added). The only fair re ading o f this alle gation, when con sidered in the lig ht of othe r facts t hat are not in dispute, is thatthe three-page document attac hed to this opinion was signed by DL LP, mailed to the defenda nts, and accepted by

them. Under the circumstances of this case, it does not matter that it was not si gned by

the defendants. See Carter v. Richards , C/A No. 116, 1990 WL 209330, at *3 (Tenn. Ct. App. W.S., filed Dec. 12, 1990) (“When a contract be tween two par ties which is contemplatedto be signed by both is reduced to writing and signed by only one of

them, but accepted by the oth e r, it becomes in contemplation of the law, a written binding contract on both.”) quoted in Buddy Lee Attractions, Inc. v. William Morris Agency, Inc. , 13 S.W.3d 343, 350 (Tenn. Ct. App. 1999).
It is well-established that a party will not be permitted to take a position on appeal tha t is contrary to a position that it took at trial. Clement v. Ni chols , 186 Tenn. 235, 237, 209 S.W.2d 23, 24 (1948); Estate of Schultz v. Munford, Inc. , 650 S.W.2d 37, 40 (Tenn . Ct. App. 1 982). Tha t is pre cis ely w hat DLLP is attempting to do in this case. It is clear, und er T enn ess ee l aw, th at D LLP cannot reverse its trial position on this appeal. Id.
The fact of the matter is that DLL P pursued inconsistent positions at trial and is continuing to attempt to

straddle these pos itions on a

ppeal. O ur analy sis starts wit h t he r eco gni ti on t hat DLLP cannot escape the fac t that the a

ddendum changin g the ve nue to Eng el S tadium is c entral to their claim for reli ef aga

inst these defenda nts. This is obviously

what pro mpte d its a ssertion that the addendum

was “approved” by

the defe ndants; bu

t this asse rtion pro ves too muc

h. This is because the adden dum i s inex trica bly conne cted t o the t wo-page document that its representative signed and sent to the defendants. Simply stated, the adde ndum upon w

hich DL LP relies is cle arly

an addendum to the two-page contract originally proposed by the defendants. That

signed d ocument b

rings in to1 In a third aff idavit, Rhodes asserted that he att ached the u nsign ed contract to th e fi rst aff

idavit because he wa s then unab le to find the agreement s igned by DLLP ’s representat ive. When he found the signed three-page contract, he attache d it to the se con d affida vit. -6- play the arbitration agreement. Try as it might, DLL

P cannot rely on

the addendum and, at

the same time, disavow the agreement to arbitrate.
DLLP attempts to make out a genuine issue of ma terial f act. I t claims th at three

separa te affida vits by one of the de

fendants’ witnesses reflect contradictory

positions. In hisinitial af fidavit filed in the trial court, Terry Rhodes, an agent of the defendant I CM, attached an unsigned copy of the first two p ages o f the three-pag e docume nt attach ed as an a ppendix to th

is opinion. He asserted that this was the agreement between the pa rties. In hissecond a

ffidavit , he att ached t he thr ee-page signed agreement, including the adde ndum reg arding

Engel St adium, and said tha

t it reflected the agreement

of the pa rties. Even ass uming the se two af fidavits 1 contain conflicting statements, they addressa matter that is no longer material. The parties ha ve moved beyond this poi nt. This is because DLL

P does not dispute that it transmitted the attached signed three-pag e document to the defendants; it only contends that its transmission constituted a counteroffer that was not accepted. As we hav e previously

noted, DL

LP is precluded from taking this position. In a ny event, th e only m aterial issu e rais ed by DLLP perta inin g to th e arbit ratio n prov isio n is wh ether t he thr ee page document in which it is found was accepted by the defend ants. Any inconsistency in the Rhodes affida vits is render ed immaterial by DL LP’s position. Hence, it has no bearing upon the issue of summary judgmen t.
As DLL P’s only basis for contending that t

here wa s no cont ract be

tween the parties i s premisedupon an unaccepted counteroffer , which we have now found to be without merit due to the legal effect of

the alleg ations of

the amen ded compl aint and t he positio n taken by

DLL P in the trial court, we findthat there was indeed a contract between DL LP and the defendants. Fur thermore, we find that this c ontract

does con tain an a greem ent to arbitrate any

disputes in New York, New York. Therefore, the trial court

erred in ordering the parties to arbitrate in Chattanoog a, Tennessee. “A court is not atliberty to make a

new contract for parties who have spoke n for themselves.” Smithart v. John Hancoc

k Mut. Life Ins. Co. , 167 Tenn. 513, 525, 71 S.W.2d 105 9, 1063 (1 934); see also Jaffe v. Bolton , 817 S.W.2d 1 9, 25 (Te nn. Ct. App . 1991); Carrin gton v. W. A. Soe

fker & Son, Inc. , 624 S.W.2d 8 94, 897 (T enn. Ct. App. 1981). Accordingly , we modify the trial court’s or der to refle ct that the

parties a re to subm

it to arbitration in New York, New York, as contemplated by their contract.
VI.
The order of the trial court is affirmed as modified. This case is remanded for enforce ment of the trial court’s modified orde r, pursua nt to applicable law. Costs on appeal are taxed to the appelle e, DL

LP, L .L.C. , dba Big

Nine Prod

uctions.-7- _______________________________ CHARLES D. SUSANO, JR., JUDGE